Treatment of adults with autism by the criminal justice system

The National Autistic Society makes the following comments on autistic people in the criminal justice system: 

Autistic people are more likely to be victims and witnesses of crime than offenders. They experience difficulties with social communication, social interaction and social imagination. They may have sensory difficulties and some coordination problems. Their behaviour may appear odd and can sometimes draw unnecessary attention, but in general autism is a hidden disability and it may not be immediately obvious to other people that the person has a disability.

There is a range of statutory and non-statutory guidance for criminal justice agencies to follow when they come into contact with people on the autism spectrum.  For example, the College of Policing has issued Authorised Professional Practice on Mental Vulnerability and Illness, which emphasises that 

Early police recognition of the possible mental health problems, learning disabilities or suicidal intent of people they come into contact with is crucial to ensuring an appropriate and effective response.

In the courts, various “special measures” are available to assist mentally vulnerable witnesses.  Crown Prosecution Service guidance says: 

Some disabilities are obvious, some are hidden. Witnesses may have a combination of disabilities. They may not wish to disclose the fact that they have a disability during initial and subsequent needs assessments. Different witnesses on the autistic spectrum may have very different needs.

There is a particular focus on the use of intermediaries to assist mentally vulnerable witnesses.  Intermediaries are allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence.  Intermediaries are available to assist witnesses as a matter of statute (under the Youth Justice and Criminal Evidence Act 1999).  Intermediaries for mentally vulnerable defendants are currently only available if the court exercises its inherent jurisdiction to ensure a fair trial.

A Joint Inspection of the Treatment of Offenders with Learning Disabilities within the Criminal Justice System: Phase Two – in Custody and the Community, 2015, sets out what is required of prisons with respect to those who have learning disabilities by reference to Prison Service Instruction 32/2011, Ensuring Equality. The inspection report states that it uses the term learning disability to include people with an autism spectrum disorder.

The PSI recognises that those with learning disabilities may not realise they have a disability, and those who are suspected of having a disability must be assessed on ‘reception’ into the prison. The PSI makes no specific provision for those already in the system but it is clear that prisons are under a duty to act in relation to prisoners with a learning disability. The policy encouraged prisons to adapt the way they communicate with learning disabled prisoners so they can understand better what is being said to them. It is also clear that such prisoners should not be discriminated against in terms of the Incentives and Earned Privileges (IEP) level based on behaviour which may have adverse consequences for prisoners with a learning disability. This may include matters such as timekeeping, cleanliness, and obeying instructions.

From 2014 the National Autistic Society (NAS) worked with HMP YOI Feltham to develop specialist Autism Accreditation Standards for prisons. HMP YOI Feltham was the first prison to achieve Autism Accreditation in 2016. In March 2015 the Ministry of Justice encouraged prisons and young offender institutes in England and Wales to apply for the National Autistic Society’s Autism Accreditation. NAS is currently working with a number of prisons and YOIs regarding accreditation.

NAS has said that in 2015 the then Minister for Prison, Probation and Rehabilitation, Andrew Selous also asked them to look at developing accreditation standards for probation services. NAS said in April 2017 that these were being piloted.